The use of internal marking schemes and model answers is something which should be considered carefully in all cases. This is illustrated by a recent UK case. Leeds City Council ("LCC") invited tenders for the refurbishment and maintenance of social housing. Mears, an unsuccessful tenderer, challenged the award of the contract on a number of grounds.
The published evaluation table set out the weighting for a number of criteria and also identified the numbered sections of the tender which fell under the heading of each individual criterion. The tenderers did not know how many marks were allocated to each section which fell under the heading of a particular criterion (i.e. the breakdown of marks among the sections within that criterion). Each section of the tender had a varying number of questions in it. The evaluation table also did not set out a breakdown of marks for the questions within each section.
It was decided in advance (but not disclosed) by LCC that each question in each section of the tender would be marked out of 10. This had the effect of giving different weightings to different sections of the tender which fell under the heading of a particular criterion. This is quite complicated but an example explains it better: where 150 marks were allocated to a criterion, and there were 2 relevant sections under that criterion, the section with more questions in it would have a greater weighting than the other section (as 10 marks are given to each question). The alternative open to LCC would have been to give each section within a criterion an equal weighting regardless of the number of questions in it. A tenderer had asked how many marks were given to each question, but LCC declined to answer this in a meaningful way.
The High Court concluded that the questions in the evaluation table represented criteria or sub-criteria. It held that by failing to inform the tenderers of the marks for each question, LCC infringed both the obligation of transparency and the express requirement to disclose the weightings for the award criteria. It is prudent to accordingly disclose any weighting for questions (or any other part of the...